The Al-Nashiri Spectacle

by Kevin Jon Heller

The bankruptcy of the U.S. military-commissions system is currently on full display in the trial of Abd al-Rahim Al-Nashiri. Readers who can stomach the spectacle of a tortured detainee being prosecuted for imaginary war crimes committed at a time when there was no armed conflict between the U.S. and al-Qaeda anywhere in the world can find excellent coverage of the pre-trial motions at Lawfare.

4 Responses

Response…
It is rather amazing that the prosecutions will start at GTMO, given that the Obama military commissions are still unlawful in several respects and that some of the reasons why have been well known.
For example, only aliens can be prosecuted before the milt. comms. — a clear violation of several relevant human rights provisions (e.g., ICCPR, Am. Dec. Rts. & Duties of Man thru the OAS Charter) as well as any relevant FCN treaty (e.g., between the U.S. and Saudi Arabia or Jordan or Pakistan), since they require equality of treatment.
Several of the findings in Hamdan still pertain with respect to the milt. comms. under the Mil. Comm. Act.
Why not seek legislation to extend jurisdiction of a federal district court in south Florida to GTMO and conduct trials there in an Article III court? — a suggestion in my article going to press soon at Cornell Int’l L.J. on Still Unlawful: The Obama Military Commissions….
Why doesn’t Eric Holder pay attention to the recognitions of the Supreme Court in Hamdan and to so many applicable provisions of international law? How can it be in the interest of the United States to violate human rights law, FCN treaties, and other relevant rules of law? Will countires around the world suddenly change their views and accept the military commissions at GTMO as lawful and fair?

I want to second both comments and add this third comment – look at this http://www.lawfareblog.com/2012/04/nashiri-motions-hear-13-wherein-the-court-goes-down-a-cipa-rabbit-hole/ . Here is the heart of the matter being explained about this crazy statute – your objection is too early, if you make it later after a substitution is granted, the judge has no f’ing power to overrule that. Heads I win tails you lose. And the constitutional stuff is just thrown out with the quaint – the constitution does not apply here the rights are only statutory (MCA). Of course, the statutory rights are so slanted and so authoritarian they do not only verge on Kafka – they ARE Kafka.

It is a kind of sublime water torture through the legal finesse. Very passive aggressive. We know that you despise these guys Congress – don’t try to cover that with ersatz process to reassure Americans that some fairness happened. It’s a joke if it was not so serious for the defendants, and for the standing of the United States in the world and in the eyes of at least some of us citizens who disagree vehemently with being made party to this show trial charade.

And the military judge is in over their head because they are like a hamster in a treadmill which is the MCA. As an Article I tribunal they do not have the independence of ethos or spirit to do better. It’s not ingrained because structurally it is absent. That’s whyt when the lawyer speaks of fundamental fairness it rings on deaf ears in the space. This is not a space where fundamental fairness can be asserted clearly in a constitutional manner. And there is such a hesitancy to assert it in an international law minimum standard of justice sense either because of our internal hesitancy about bringing international law into the system. Why, for example, did not one mention in response to the last in time stuff the idea of vested rights with regard to Common Article 3 arguments and regularly constituted?

And we blithely go about our business without a peep about this on the news. And neither candidate has any incentive to say anything – they both want a cram down and a conviction through this system. I have said it before and I will say it again – it’s a conviction machine.

Sorry if my plainspokenness does not appear sufficiently erudite for this space.

Best,
Ben

4.12.2012
at 12:41 pm EST Benjamin G. Davis

Response…
Let us recall that the Chief Prosecutor, Colonel Morris Davis, resigned in protest, and there have been other JAG officer resignations over the years. He is now on the faculty at Howard. It just won’t go away.

4.12.2012
at 1:07 pm EST Jordan

Yes, many prosecutors have resigned. Becuase they have ethics.

Unlike current trial counsel who seems to think it is okay for a prosecutor to misrepresent material facts on the record.

March 1, 2015Guest Post: The Mirage of Hybrid Justice in Africa?[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies in Geneva. Before joining the Geneva Academy of International Humanitarian Law and Human Rights, he worked in the Democratic Republic of Congo, ...

February 17, 2015The Absence of Practice Supporting the "Unwilling or Unable" Test
Regular readers of the blog know that one of my hobbyhorses is the "unwilling or unable" test for self-defense against non-state actors. As I have often pointed out, scholars seem much more enamored with the test than states. The newest (regrettable...